The Responsible Housing Provider ‑‑ Excessive Clutter

This is information only and is not intended to be taken as legal advice. If you have a case of excessive clutter, we urge you to talk to your lawyer and work out a plan that meets your duties and minimises your liability.

Housing providers often ask: (1) how to clean up an excessively cluttered unit (often this is referred to using the term “hoarding”), and (2) whether they can evict the occupants. These questions raise a number of legal issues.

Human Rights: Excessive clutter can result from mental illness. The Human Rights Code obliges a housing provider to accommodate mental illness to the point of undue hardship. Undue hardship is a very high threshold, assessed on cost (including external funding), health and safety. Where there is a suspected or known mental illness, consult with a lawyer to find a way to satisfy the duty to accommodate. For example, providing the most appropriate help with fumigation preparation, often necessary in cluttered units, helps defend against allegations that you have not met the duty to accommodate.

Unit access: Some occupants are embarrassed to allow access to excessively cluttered units. Sometimes parts or all of a unit are not physically accessible. The housing provider has the right of access so long as it meets the requirements in the Residential Tenancies Act (for rental housing) and the by‑laws (for housing co‑ops), and does so in a way that is in keeping with the duty to accommodate. The housing provider must be able to preserve its physical asset.

Fire safety: Excessive clutter has been a focus since the Wellesley fire in Toronto; the Office of the Fire Marshall (OFM) found the fire began on an excessively cluttered balcony and spread quickly into the excessively cluttered unit. The OFM urged “landlords and property owners to inform local fire departments of instances of hoarding where they believe it poses a fire safety risk” so that “fire departments can help to address these instances of hoarding through the Ontario Fire Code and their partnerships with other community mental health and supporting agencies.” Relying on the OFM statement, housing providers are encouraged to build relationships with their local fire station to get the support they need to resolve the problem without issuing costly orders.

Privacy concerns: Be sensitive to privacy considerations when dealing with excessively cluttered units. A cluttered unit is a private matter. In consultation with a lawyer, consider a policy of taking photos at all unit inspections to document the condition of all units including those that are cluttered, with the necessary safeguards in place to maintain the privacy of the photos.

General costs to housing provider: Housing providers may be liable in the case of a fire, resulting in insurance premium increases, legal fees, settlements, court awards, and reconstruction costs.

Eviction: It is not impossible to evict for excessive clutter. It is just a long process requiring consultation with a lawyer. Whether at the Landlord and Tenant Board or in Superior Court, the decision-maker must be assured: that the condition of the unit does not meet the standard required; that the occupant was given the time and the support to bring it to the standard; and that at no time was the person treated unfairly. Eviction should always be considered a last resort.

Stay tuned to this blog for more posts geared to the Responsible Housing Provider.